The Politics of Accountability for Targeted Killings

As regular readers know, I authored three posts on the kill-list creation process. In my first post I explained how law creates categories of targets, and how bureaucrats begin to create lists of targets. In my second post I explained how network analysis contributes to the kill-list creation process. The third post described the extensive paper and electronic trail of approvals and intelligence associated with the kill-list creation process (including a sample "baseball card"/"kill card") . This post will focus on who is likely involved in the voting process, and the implications of what I’ve described for the accountability debate.

APPROVAL PROCESS SUMMARY

To begin, let's sketch a general picture of the kill-list approval process. Based on news reports, it appears that the first step in the process consists of military and intelligence officials from various agencies who compile data and make recommendations based on internal vetting and validation standards. Second, those recommendations go through the NCTC, which further vets and validates rosters of names and other variables that are further tailored to meet White House standards for lethal targeting. Third, the president’s designee (previously Brennan) convenes a NSC deputies meeting to get input from senior officials, including top lawyers from the appropriate agencies and departments. At this step is where the State Department’s Legal Adviser and the Department of Defense General Counsel along with other top lawyers would have an opportunity to weigh in with their legal opinions on behalf of their respective departments. Objections to a strike from top lawyers might prevent the decision from climbing further up the ladder absent more deliberation. In practice, an objection from one of these key attorneys almost certainly causes the president’s designee in the NSC process to hesitate before seeking final approval from the president. Finally, if the NSC gives approval, the president’s designee shapes the product of the NSC’s deliberations and seeks final approval from the president. At this stage, targets are evaluated again to ensure that target information is complete and accurate, targets relate to objectives, the selection rationale is clear and detailed, and collateral damage concerns are highlighted. By this point in the bureaucratic process, just as in prior conflicts (take Kosovo for example), there will be few targeting proposals that will reach the President that will prompt absolute prohibitions under the law of armed conflict. Rather most decisions at this point will be judgment calls regarding the application of law to facts, questions about the intelligence supporting a target, or questions about analytic judgments regarding facts and expected outcomes.

POLITICS AND THE ACCOUNTABILITY DEBATE

Despite the details that can be pieced together from press reports and my prior posts, there are still a substantial number of unanswered questions that are germane to the accountability debate. Seeking answers to these questions is something that should be a key focus of Congressional committees with appropriate jurisdiction. Importantly, given the extensive bureaucratic cooperation in the targeting process, jurisdiction is not limited to the Intelligence and Armed Services Committees. As we've seen the Judicary Committees can flex their oversight muscles, and the Foreign Relations Committee can and should ask questions about the State Department's assessment of blowback. Perhaps the Foreign Relations Committee could even ask questions about what role the State Department is playing in the vetting and validation of targets. For example, we know from Klaidman that State's Bureau of Intelligence and Research had input into at least some of the government's targeting decisions, and we know from my prior posts that the long-term strategic consequences of a targeting decision are assessed as part of the targeting process, if and when the Foreign Relations committee convenes hearings, they should inquire into State's assessment of these factors, whether they think their assessments are being given due weight in the process, and how they think the targeting process should be reformed to take account of the potential long term consequences of the targeted killing strategy. In short, listing all of these committees with potential jurisdiction is important because any one committee standing alone can be stonewalled by the executive branch, however these eight committees working together can be an effective check --- if they choose to be one.

Why should the number of committees with oversight jurisdiction matter? It matters because members of Congress conducting intelligence oversight are oftentimes so limited in what they can discuss about their oversight functions that it is very difficult for them to build coalitions with other members of Congress. Those coalitions are essential to holding the Executive branch accountable. As Lee Hamilton once noted:

If you’re the chairman of a committee that works in the unclassified world, you get a lot of help: lots of reports bring issues to your attention, trade associates write reports, citizens speak up, watchdog groups do studies . . . Not so in the classified world. The world of intelligence is vast . . . . If you’re on the outside world of intelligence, you know nothing about it other than what the executive branch decides to tell you. The intelligence committees are completely on their own.

Thus, in the world of intelligence, secrecy has limited the ability of both the judicial and legislative branch to oversee and review intelligence activities. The executive branch simply knows more about how they conduct targeted killings than the legislature that oversees them. This expertise advantage allows the executive branch to shield certain activities from oversight because Congress is comparatively disadvantaged with regard to the knowledge necessary to ask the right questions. As Amy Zegart has noted, Congressional rules limiting a member’s term on an Intelligence Committee to eight years further limits the development of expertise. Beyond the problem of expertise is the fact that members of congressional intelligence committees lack the same budgetary power that other congressional committees possess. This means that it is more difficult for these members to threaten to cut off funding when the executive branch chooses to not provide information to the committee or when the executive branch engages in other malfeasance.

For example, the Senate Select Committee on Intelligence oversees intelligence activities. If in the conduct of its oversight it was concerned about a particular targeted killing practice, such as the criteria used to add someone to a kill-list, the committee could threaten to cut off funds until more information was provided about the kill-list criteria. However, it would not be much of a threat because appropriations are handled by the Senate Defense Appropriations Subcommittee, and there is little membership overlap between the two committees. This means that members of the Intelligence Committee overseeing targeted killings would need to enlist the support of members of the Appropriations Subcommittee to cut off funds. Here again, secrecy poses a problem because intelligence budgets are classified. Members of Congress serving on either the intelligence committees or the defense appropriations committees (which appropriates funds for intelligence activities) can access the budget, but even their security-cleared staff and other members cannot.

Imagine how this would play out in practice. Intelligence Committee members themselves would need to contact just the appropriators (not their staff). When contacting them, the Intelligence Committee members would not be able to disclose to the appropriators any details about classified activities other than the general line items in the budget that relate to those activities. Thus, the intelligence overseers would need to convince other members to cut off funds based on generalized concerns, rather than any specific details. And all of this assumes that the members have the time and inclination to spend on fighting these fights. Given these facts, when it comes time to threaten to cut off funding for some executive branch malfeasance, it is not surprising that the executive branch sees these threats as hollow and may choose to delay or even ignore a congressional request. While the threat may exist, in reality it is an idle one as only a handful of members will be able to find out the information necessary to make a credible threat, they will not be able to share that information publicly, and they will not be able to share it with other members to build broader congressional support for withholding funds associated with the inappropriate activity. In short, diffused authority combined with secrecy may allow the executive branch to dodge accountability.

These are some of the oversight challenges and that is why it's critical for opponents of targeted killings to recognize that eight, not two committees have oversight jurisdiction. Those interested in holding the President's feet to the fire need to encourage cross committee oversight which will allow champions of the political accountability cause to cobble together effective coalitions --those coalitions are necessary if political accountability is going to have any impact. Of course, reforming oversight of intelligence could also solve this problem, but efforts to do so have consistently failed. Which brings me to the cynical point.

Does any member of Congress actually care? It seems that the targeted killing policy lacks a sufficiently numbered constituency that is impacted by the program. Are the issues in the targeted killing policy important enough for any individual member of Congress to take steps to change the policy? (real steps, versus political stunts) Will a member lose their seat over a failure to provide greater due process protections or more reliable targeting information in the kill-list creation process? Or is it more likely that they will lose their seat if they champion the cause of potential targets and one of those targets is not struck but subsequently carries out an attack? (even if it's not "more likely" which side of that debate does any particular politician want to be on?) That is the political calculus facing policymakers and in that calculus, it seems difficult to justify changing targeting absent some clear benefit to national security or some clear political gain in a member's home district. Moreover, even if individual policymakers agree that the policy should be changed, they may face substantial hurdles in their attempts to convince congressional leaders (who drive the legislative agenda) that the policy should be overhauled. This cynical account is merely describing what policy scholars call, the status quo bias. In such a political environment, little change is possible absent sufficient energy to overcome the current state of affairs.

This post focused heavily on Congressional oversight activities as a political accountability mechanism. However, Presidential politics (such as nominations to head agencies like the CIA) and international politics (such as the opinions of allies) are also mechanisms of political accountability. I'll discuss those mechanisms of accountability in my next post.

(As in previous posts, I have omitted internal references, they can be found in the paper which is now available for download).

Gregory McNeal is a professor at Pepperdine University. He is a national security specialist focusing on the institutions and challenges associated with global security, with substantive expertise in national security law and policy, criminal law, and international law. He previously served as Assistant Director of the Institute for Global Security, co-directed a transnational counterterrorism grant program for the U.S. Department of Justice, and served as a legal consultant to the Chief Prosecutor of the Department of Defense Office of Military Commissions on matters related to the prosecution of suspected terrorists held in the detention facility in Guantanamo Bay, Cuba.